Citation Nr: 1808036 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-22 122 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II, to include as due to herbicide exposure. 2. Entitlement to service connection for ischemic heart disease, to include as due to herbicide exposure. 3. Entitlement to service connection for Parkinson's disease, to include as due to herbicide exposure. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Donna D. Ebaugh, Counsel INTRODUCTION The Veteran served on active duty from May 1970 to September 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision by Regional Offices (ROs) of the Department of Veterans Affairs (VA) in Huntington, West Virginia. In September 2016, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the proceeding is of record. Following the hearing, the Veteran submitted additional evidence with a waiver of review by the Agency of Original Jurisdiction (AOJ). The issue of entitlement to service connection for hypertension was raised by the record in a January 2016 private medical examination report, but has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDINGS OF FACT 1. The Veteran was assigned to the HHB 6th Battalion, 12th artillery, I Corps, during the Vietnam Era. 2. The evidence is at least in equipoise with respect to whether the Veteran served near the South Korean demilitarized zone (DMZ), and was exposed to herbicide agents. 3. The Veteran has been diagnosed with diabetes mellitus, type II, ischemic heart disease, and Parkinson's disease; these disabilities are subject to presumptive service connection as a result of exposure to herbicide agents. 4. The Veteran's diabetes mellitus, type II is treated with medication. 5. The Veteran's ischemic heart disease was greater than 3 and less than 5 METs. 6. The Veteran's Parkinson's disease is manifested by at least mild, incomplete paralysis in all radicular groups. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus, type II, are met. 38 U.S.C.A. §§ 1110, 1112, 1116, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307(a)(6), 3.309(e) (2017). 2. The criteria for service connection for ischemic heart disease, are met. 38 U.S.C.A. §§ 1110, 1112, 1116, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307(a)(6), 3.309(e) (2017). 3. The criteria for service connection for Parkinson's disease, are met. 38 U.S.C.A. §§ 1110, 1112, 1116, 1137, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307(a)(6), 3.309(e) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this case, the Veteran claims service connection for diabetes mellitus, type II, ischemic heart disease, and Parkinson's disease, all as a result of exposure to Agent Orange in service. Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Additionally, a veteran who served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, or in certain areas near the Demilitarized Zone in the Republic of Korea from April 1, 1968 to August 31, 1971 is presumed to have been exposed to certain designated herbicide agents (e.g., Agent Orange) during such service, absent affirmative evidence to the contrary. 38 U.S.C.A. § 1116 (f); 38 C.F.R. § 3.307 (a)(6)(iii). In the case of such a veteran, service connection based on herbicide agent exposure will be presumed for certain specified diseases including diabetes mellitus, type II, ischemic heart disease, and Parkinson's disease, that become manifest to a compensable degree. 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As an initial matter, the Board finds that the Veteran has diagnoses of diabetes mellitus, type II, ischemic heart disease, and Parkinson's disease; all manifested to a compensable degree, as required for service connection under 38 C.F.R. § 3.309 (e). Relevant to diabetes, an August 2013 VA treatment record documents the diagnosis of diabetes mellitus, type II and that the diabetes is controlled with medication. Such treatment for diabetes supports a compensable rating under 38 C.F.R. § 4.119, Diagnostic Code 7913. Relevant to ischemic heart disease, the January 2016 private examination resulted in a finding of interview-based METs test with greater than 3 but less than 5 METs. The report also notes that the Veteran had two myocardial infarctions resulting in bypass surgery in 1995 and heart catheterization with two stents in 2010. These findings are demonstrative of ischemic heart disease to a compensable degree under 38 C.F.R. § 4.104, Diagnostic Code 7006. Relevant to Parkinson's disease, the January 2016 private examination report noted that the Veteran's tremors associated with Parkinson's disease were shown to affect upper and lower extremities, bilaterally. These findings are demonstrative of Parkinson's disease to a compensable degree under 38 C.F.R. § 4.124a, Diagnostic Code 8513. Thus, the only remaining question is whether the Veteran was exposed to herbicide agents in service; the Board finds that he was. VA has a list of units that have been recognized by the Department of Defense (DoD) as having served in areas along the Korean DMZ. See VA Adjudication Manual M21-1, Part IV, Subpart ii, Chapter 1, Section H, para. 4(b). The Veteran's unit, however, is not among these units recognized by DoD as having served in the Korean DMZ. The Veteran's service personnel records confirm that he served in the HHB 6th Battalion, 12th artillery, I Corps, while in Korea, and that his military occupational specialty (MOS) was a field artillery crewman. VA's Adjudication Procedure Manual instructs that, if a veteran was neither a member of an identified unit or entity, nor served during the qualifying time period, a request should be sent to an agency like the Joint Service Records Research Center (JSRRC) if the veteran has provided sufficient information to permit a search for information verifying exposure to herbicides. See M21-1MR, Part IV, Subpart ii, Chapter 2, Section H, para. 4(b). Here, the AOJ issued a formal finding in February 2012, that the Veteran was not exposed to Agent Orange. The formal finding does not indicate that the AOJ submitted a request to the JSRRC to confirm the lack of exposure; however, remand for such request is not required as the Board is able to grant the claims for the reasons explained below. The Veteran submitted numerous written statements, photographs, a buddy letter, and offered sworn testimony, all consistently reporting that he performed special duties with other units from time to time while in Korea. See e.g. March 2014 statement. In January 2011, the Veteran submitted a statement that he served north of the 38th parallel, near the DMZ. He reported that he traveled to multiple camps near the DMZ while performing duties regarding infield communications between the U.S. and Republic of Korea (ROK) armies. He reported that his battalion was being decommissioned and turned over to the ROK army and that as a result, his duties required him to be in the field to help train the ROK army. He reported making several trips to the DMZ tro drive officers to other units. He also reported being near the DMZ numerous times with the ROK as a field artillery crewman to train and advise. He also reported being a radio operator for a forward observer in the launching of an "Honest John" rocket. He also reported that towards the end of his time in Korea, when there were only a small number of soldiers left, he became a clerk to do morning reports for the transition of personnel in the unit. He reported that during that time, he was in a northern area with ROK, driving personnel to the field. Again, in July 2014, the Veteran submitted a statement noting that although he did not have official orders to be at Camp Casey, he was there for about a month while in transit to Camp Red Cloud. He also explained that his unit was being dismantled at that time and pared down to 28 people. He reported that he went to different locations while in limbo with uncut orders for approximately four months. The Veteran also submitted letters from fellow service members, T.F. and J.R., who offered their opinions that there was a good possibility that the Veteran came in contact with Agent Orange sprayed areas. Neither of these fellow service members provided a basis for their opinions regarding the Agent Orange exposure, thus the opinions have only limited probative value as to Agent Orange exposure. However, the January 2013 letter from, J.R., confirmed that the Veteran performed duties other than his specific MOS. The Veteran also submitted photographs in support of his claim, including photographs of himself with the Bridge of No Return visible in the background, and close-up pictures of the bridge as well as a guard gate. The Board finds that the Veteran is competent to report that he was at the DMZ on multiple occasions. The Board finds such statements are credible, particularly in light of the photographs that the Veteran submitted in support of his claim. Moreover, the Board notes that, in July 2014, the AOJ granted service connection for posttraumatic stress disorder based on the Veteran's fear of enemy combatants, which he reported were experienced on the occasions in which he traveled to the DMZ. See e.g. Veteran's March 2014 statement. As the AOJ previously found the Veteran's statements credible, the Board has no reason to doubt the statements. Having concluded the Veteran served near the DMZ, it may be found the Veteran was exposed to the relevant herbicide agent, triggering the presumption of service connection for diabetes mellitus, type II, ischemic heart disease, and Parkinson's disease. As the Board finds that the Veteran was exposed to the relevant herbicide agent, and the Veteran has current diagnoses of diabetes mellitus, type II, ischemic heart disease, and Parkinson's disease, all manifest to a compensable degree, service connection for the disabilities is warranted. ORDER Service connection for diabetes mellitus, type II is granted. Service connection for ischemic heart disease, is granted. Service connection for Parkinson's disease, is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs